PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEVIN DEWAYNE LEFFLER, Defendant - Appellant. No. 18-5087

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHE RN DISTRICT OF OKLAHOMA (D.C. No. 4:18-CR-00021-JED-1)

________________ _________________ Submitted on the briefs: * Virginia L. Grady, Federal Public Defende r, and Meredith B. Esser, Assistant Federal Public Defender, Denver, Colora do, for Defendant-Appellant. R. Trent Shores, United States Attorney, an d Christopher J. Nassar, Assistant United States Attorney, Tulsa, Okla homa, for Plaintiff-Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, BALDOCK , and EID , Circuit Judges.

________________ _________________ BALDOCK , Circuit Judge.

________________ _________________

* After examining the briefs and appella te record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### November 19, 2019
Elisabeth A. Shumaker Clerk of Court2 A jury found Defendant–Appellant Kevi n Dewayne Leffler guilty of being a felon in possession of a firearm in viola tion of 18 U.S.C. § 922( g)(1); possessing a short-barreled shotgun in furt herance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i); possess ing with the intent to di stribute methamphetamine in violation of 21 U.S.C. § 841(a )(1); and possessing an unregi stered firearm in violation of 26 U.S.C. § 5861(d). De fendant only appeals his convi ction for possession of a short-barreled shotgun in furtherance of a drug-tra fficking crime, arguing the Government presented insufficient evidence for the jury to find him guilty of this offense. Because Defendant waived his only asserted ground for a ppeal, we decline to address the merits of his claim. Theref ore, exercising jurisd iction under 28 U.S.C. § 1291, we affirm.
I. Shortly before midnight on January 5, 2018, Tulsa Police Officer Ashley Kite ran the license plates on seve ral vehicles parked at the Tudor House Inn, a location known for criminal activity based upon her e xperience. One of the vehicles, a blue Ford Escape, had been reporte d stolen. Officer Kite notif ied other officers about the stolen Escape, and they surveilled the vehi cle for about fifteen minutes before the Escape moved to an adjacent Arby’s parking lot where a disabled truck was parked. Tulsa Police Officer Johnson sa w the driver of the Escape ex it the vehicle and walk to the front of the disabled truck, which had its hood raised and blocked the officers’ line of sight. Officer J ohnson observed people walk ing back and forth between the Escape and the disabled truck and looking in the ho od of the disabled truck. The officers3 approached the vehicles, ordered the driver and passenger of the Escape to put their hands in the air, and detained them. Th e officers also found and detained a third occupant of the Escape who had not exited the vehicle. During a search of the immedi ate area, Officer Kite foun d a loaded pistol on the ground in front of the disabled truck. The driver of th e Escape, later identified as Defendant, informed the officers he owned the pistol and had dropped it there when the officers approached . After the officers arrested Defendant, they conducted an inventory search of the Escape. In the ca rgo area of the Escape, the officers found a duffel bag containing numerous assorted gun magazines (some were loaded; most were empty), ammunition, and two disabled grenades . Next to the duffel bag, the officers discovered a Ziploc baggie containing approximately 42 grams of methamphetamine (approximately 160–170 dosage units); a set of digital scales; and numerous small plastic baggies. The officers also found five long guns, including a Mossberg 12-gauge shotgun that had been modified into a short-barreled shotgu n, in the cargo area of the vehicle. Defendant told the officers ev erything in the Escape belonged to him. A federal grand jury subse quently indicted Defendant on six charges involving guns and drugs. The case proceeded to tr ial, where the Govern ment presented six witnesses, including the responding officer s; three Alcohol, Tobacco, and Firearms (“ATF”) agents; and a forensic scientist with the Tulsa Polic e Department. At the close of the Government’s case, De fendant moved for a judgment of acquittal. Specifically, as to the short-barreled s hotgun and three other fire arms, Defendant argued the evidence was insufficient because the Government pr esented no evidence these4 firearms were operable. De fendant also made a general motion for a judgment of acquittal as to the other two firearms discovered during th e search of the Escape and the drug-related counts. The district court denied Defenda nt’s motion, finding, when viewing the evidence in the light most favorab le to the Government, a rational trier of fact could find every elemen t of the crimes charged be yond a reasonable doubt. The defense then rested without pres enting any additional evidence. Following deliberation, the jury found Defendant guilty of, inter alia , possessing a short-barreled shotgun in furt herance of a drug-tr afficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i). The jury acquitted Defe ndant on Count Four, which charged him with posse ssing a firearm with an alte red or obliterated serial number. Thereafter, the district cour t sentenced Defendant to 171 months’ imprisonment. This timely appeal followed.
II. Defendant argues the Government presen ted insufficient ev idence to convict him of possessing a short-barre led shotgun in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i). We generall y review challenges to the sufficiency of the ev idence de novo to determine “wheth er, after viewing the evidence in the light most favorable to the prosecution, any rational tr ier of fact c ould have found the essential elements of the crime beyond a reasonable doubt.” United States v.
Serrato , 742 F.3d 461, 472 (10th Cir. 2014). But here the Government argues Defendant failed to preserve his challenge because he doe s not raise the same argument on appeal as he did in moving for a judgment of acquittal before the distri ct court. The5 Government further contends Defendant waived his insuffici ent-evidence claim altogether because he did not argue for plai n error in his opening brief. We agree.
A. Before turning to the argument Defenda nt presents on appeal, we pause to discuss some general princi ples of forfeiture and wa iver. Generally, “a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff , 428 U.S. 106, 120 (1976). Wh en a party fails to raise an argument below, we typically treat the argument as forfeited. Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011). And when an appellant raises a forfe ited argument on appeal, we will reverse only if the appellant can sati sfy our rigorous pl ain-error test. See United States
v. Kearn , 863 F.3d 1299, 1305 (10th Cir. 2017). By contrast, wh en a party intentionally relinquishes or abandons an argument in the di strict court, “we usua lly deem it waived and refuse to consider it.” Richison , 634 F.3d at 1127. These rules apply not only when a litigant raises a new argument on app eal but also when “a litigant changes to a new theory on appeal that falls under th e same general category as an argument presented at trial.” See United States v. Nelson , 868 F.3d 885, 891 n.4 (10th Cir. 2017) (quoting Lyons v. Jefferson Bank & Tr. , 994 F.2d 716, 722 (10th Cir. 1993)). To avoid us treating a claim as forfeited or waived, an appella nt’s opening brief must “cite the precise references in the reco rd where the issue was raised and ruled on” in the district court. See 10th Cir. R. 28.1(A). If an appellant fails to satisfy this requirement, we may assume the appellant di d not preserve the i ssue for appeal and refuse to review the alleged error. Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. ,6 82 F.3d 1533, 1540 n.3 (10th Cir. 1996). Although we may independently review the record to determine whether the appellant rais ed an issue below, we have warned that “all counsel should unde rstand the potentially serious cons equences that could result from noncompliance with the applicable rules of appella te procedure.” See United States v. Williamson , 53 F.3d 1500, 1514 n.7 (10th Cir. 1995). When an appellant fails to preserve an i ssue and also fails to make a plain-error argument on appeal, we ordinarily deem the i ssue waived (rather than merely forfeited) and decline to review th e issue at all—for plain error or otherwise. Richison , 634 F.3d at 1130–31. Under such circ umstances, “the failure to ar gue for plain error and its application on appeal . . . sure ly marks the end of the road for an argument . . . not first presented to the district court.” United States v. Lamirand , 669 F.3d 1091, 1100 n.7 (10th Cir. 2012); see also United States v. Wright , 848 F.3d 1274, 1 281 (10th Cir. 2017) (“[W]e have repeatedly declined to consider ar guments under the plain-error standard when the defendant fails to argue plain error.”). As we explain below, our application of these general principles a nd other precedents to Defendant’s argument on appeal leads us to decline to a ddress his insufficien t-evidence claim.
B. On appeal, Defendant challenges the suff iciency of the evidence to support his conviction for possession of a short-barr eled shotgun in furtherance of a drugtrafficking crime. Specifically, he argues the Government failed to establish the requisite nexus between the s hort-barreled shotgun and drug trafficking for the jury to7 find he possessed the weapon in furtherance of a drug-traf ficking crime. The first problem with Defendant’s ar gument is it comes too late. “The Rules of Criminal Procedure do not allow a defendant to wait until appeal” to challenge the sufficien cy of the evidence. United States v. Goode , 483 F.3d 676, 680 (10th Cir. 2007). Rather , a defendant must present cl aims of insufficient evidence in the first instance to the district court through a motion for a judgment of acquittal. Id. at 680–81; cf. Fed. R. Crim. P. 29. “When a de fendant challenges in district court the sufficiency of the eviden ce on specific grounds, ‘all gr ounds not specified in the motion are waived.’” Goode , 483 F.3d at 681 (quoting United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003)). “Although we have descri bed the failure to raise a challenge in district court as a ‘waiver,’ it is more precisely term ed a forfeiture when nothing suggests a knowing, voluntary failure to raise the matter.” Id. at 681. While Defendant moved for a judgment of acquittal as to the short-barreled shotgun in the district cour t, the motion was not predicat ed on the ground he now raises to challenge the sufficiency of the eviden ce. Defendant presen ted two motions for a judgment of acquittal before the district court. As releva nt here, Defendant argued the Government failed to show the short-barrel ed shotgun was readily available to fire because ATF Agent Darrell With em testified he did not: (1 ) fire the weapon, (2) know if it had a firing pin, or (3 ) know if it was operable. On appeal, however, Defendant raises a new theory. He now argues the Government failed to satisfy the “in furtherance” element of § 9 24(c)(1)(B)(i) because the ev idence was insufficient to establish the requisite nexus between the short-barreled shot gun and drug trafficking.8 Defendant did not raise this argument before the district court and thus failed to preserve it for review on appeal.
C. Because Defendant failed to preserve his argument for review on appeal, we ordinarily would review his insufficient- evidence claim under our rigorous plain-error standard. See Richison , 634 F.3d at 1128. But the Gove rnment urges us to conclude Defendant waived his claim because he did not argue for plain-error review in his opening brief. Defendant, in fact, did not raise plain error until his reply to the Government’s brief. In this Circuit, we generally do not cons ider arguments made for the first time on appeal in an appellant’s reply brie f and deem those arguments waived. United States v. Pickel , 863 F.3d 1240, 1259 (10th Cir. 2017); but see United States v. Courtney , 816 F.3d 681, 684 (10th Ci r. 2016) (treating plain-e rror argument raised for the first time in an appellant’s reply brief as forfeited and reviewing for plain error). The reasons for our general rule are two-fold. Firs t, to allow an appellant to raise an argument for the first time in a reply brief “would be manifestly unfair to the appellee who, under our rules, has no oppor tunity for a written response.” Hill v. Kemp , 478 F.3d 1236, 1251 (10th Cir. 2007) (quoting Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1278 (10th Cir. 1994)). Second, th e rule also protects us from issuing “an improvident or ill-advised opinion” because we did not have the benefit of the adversarial process. Id.9 Notwithstanding this general rule, we have left open the door for a criminal defendant to argue error in an opening brief and then allege plain error in a reply brief after the Government asserts waiver. See United States v. MacKay , 715 F.3d 807, 831 n.17 (10th Cir. 2013). “While raising an alternative plain error argument might be a prudent practice for appellants to follow,” we have explained it is not “mandated by Richison or our other precedents.” United States v. Zander , 794 F.3d 1220, 1233 n.5 (10th Cir. 2015). Accordingl y, when an error is obvious enough and satisfies Federal Rule of Criminal Procedure 52(b), we ma y exercise our discretion to recognize the error “notwithstanding br iefing deficiencies.” Courtney , 816 F.3d at 684; accord Fed. R. Crim. P. 52(b) (“A plain erro r that affects substantial rights may be considered even though it was not brought to th e court’s attention.” (emphasi s added)). But we will only exercise our discretion if it “permit[s] the appellee to be heard and the adversarial process to be served.” United States v. Isabella , 918 F.3d 816, 844 (10th Cir. 2019) (quoting Zander , 794 F.3d at 1232 n.5) (deeming plai n-error argument waived due to briefing deficiencies). Under Rule 52(b) and our precedents, we have discretion to review Defendant’s challenge to the sufficiency of the evidence despite his failure to argue for plain error in his opening brief. See Courtney , 816 F.3d at 683–84; see also United States v. Olano , 507 U.S. 725, 736 (1993) (explaining review for plai n error lies “within the sound discretion of the Court of Appeals”). And, as Defendant points out, we have exercised this discretion to review claims fo r plain error when argued for the first time in a reply brief. See, e.g. , United States v. Yurek , 925 F.3d 423, 444 (10th Cir. 2019)10 (exercising discretion to re view claim where preservati on of argument in dispute); United States v. Chavez-Morales , 894 F.3d 1206, 1214 (10t h Cir. 2018) (explaining appellant’s advancement of a plain-error ar gument in his reply br ief “is sufficient to permit us” to review the argument for plain error); United States v. Pacheco-Donelson , 893 F.3d 757, 759–60 (10th Cir. 2018) (considering a plain- error argument raised in a reply brief). The facts underlying this cas e, however, militate against reviewing Defendant’s claim under th e plain-error standard. First, as we explained ab ove, Defendant clearly forf eited his challenge to the sufficiency of the evidence be cause he raises an argument on appeal he did not present before the district court in moving for a judgment of acquittal. In Zander , we found the adversarial process served because the defendant “ade quately addressed the issue of plain error review in his reply to the government’s brie f, after arguing in his opening brief that his objections below were sufficiently raised to be preserved for review on appeal.” Zander , 794 F.3d at 1233 n.5. We noted, however, we mi ght reach a different conclusion “when there is no di spute that the appellant failed to raise an issue below.” Id. Nowhere—in either his opening brief or in his reply—does De fendant contend he preserved his argument or assert it is not subject to forfe iture. Thus, no dispute exists that Defendant failed to pres erve his insufficient-eviden ce claim for review on appeal. Nor does Defendant’s failure to argue for plain-error re view in his opening brief appear to be a “product of mistake.” See Courtney , 816 F.3d at 684. Defendant did not fulfill his obligation to iden tify where the precise issue raised on appeal was raised in the district court and ruled upon. See 10th Cir. R. 28.1(A) (requiring an appellant11 to “cite the precise references in the record where the issue was ra ised and ruled on”). Nonetheless, without citing the record or even mentioning his motion for a judgment of acquittal before the district court, De fendant argued for de novo review in his opening brief. In response to the Governme nt’s brief, Defendant does not even address the preservation issue—much le ss attempt to argue he pres erved his claim for review on appeal. Rather, Defendant suggests preservation of his claim is irrele vant because even if we review his claim for plain error, the analysis is essent ially the same as de novo review. 1 Defendant’s “failure” to argue for plain error in his opening brief appears to be a voluntary failu re to raise the matter, more akin to a waiver than a forfeiture, rather than a product of mistake. We note the Government did not seek leav e to file a surrep ly in response to Defendant’s reply brief, whic h may cut against waiver. See Courtney , 816 F.3d at 684. But this factor alone does not require us to exercise our discretion in Defendant’s favor. See id. at 683–84 (explaining whether to re view for plain error is a matter of discretion); see also United States v. McGehee , 672 F.3d 860, 873 n.5 (10th Cir. 2012) (“[W]e are not obliged to appl y forfeiture principles to [a party’s] briefing omission;

1 To be sure, “a conviction in the absence of sufficient evidence of guilt is plainly an error, clearly prejudiced the defendan t, and almost always creates manifest injustice.” Goode , 483 F.3d at 681 n.1. But “[t]o th e extent [Defendant] might suggest that the fourth prong of plai n-error review does not apply in the context of a challenge to the sufficiency of the evidence,” his contention is “contrary to binding circuit precedent.” Id. (assuming first three elements of the plain-error standard were satisfied but holding “defendant’s insu fficient-evidence clai m fails on the fourth element”). Our law unequivocally provides “a forfeited cl aim of insufficient evidence must be reviewed under the plain-error standard.” Id.12 such decisions are discretionary .”). While seeking leave to file a surreply might be a prudent practice for appellees to follow when an appellant raises plain error for the first time in a reply brief, the Government’s failure to do so here does not forestall a conclusion of waiver. See M.D. Mark, Inc. v. Kerr–McGee Corp. , 565 F.3d 753, 768 n.7 (10th Cir. 2009) (“[T]he genera l rule in this circuit is th at a party waives issues and arguments raised for the firs t time in a reply brief.”). We might elect to consider Defendant’s argument if the Government neglected to raise either Defendant’s failure to preser ve his insufficient-evidence challenge or his failure to argue for plain error in his openi ng brief. Such neglect could function as a waiver of the Government’s opportunity to hold Defendant to his failure to preserve his argument and his briefing de ficiencies. “The Governme nt, however, does [ ] argue Defendant waived his present challenge, and accordingly, has [not] waived the waiver.” See United States v. Heckenliable , 446 F.3d 1048, 1049 n. 3 (10th Cir. 2006). We also might be willing to overlook Defe ndant’s failure to argue for plain error in his opening brief if Defendant was proceeding pro se on appeal. See Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011) (explaining we construe briefs liberally when an appellant is pro se). But in this case Defendant was represented by c ounsel at trial and is represented by counsel on appeal. Acco rdingly, we cannot di sregard Defendant’s failure to raise plain error in his opening brief on this ground. In sum, we conclude Defendant waived his insufficient-e vidence claim by failing to argue for plain er ror in his opening brief. See United States v. Walker , 918 F.3d 1134, 1153–54 (10th Cir. 2019) (“To be clear, whether issues should be deemed13 waived is a matter of disc retion.”). Although Rule 52(b) and our precedents give us discretion to consider a plain- error argument raised for the fi rst time in a reply brief, we are not required to do so. See Courtney , 816 F.3d at 683–84; see also Abernathy v. Wandes , 713 F.3d 538, 552 (10th Cir. 2013) (“[T]h e decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.”). Under these circumstance s, we do not believe reviewing Defendant’s argument would serve the advers arial process. Therefore, we decline to exercise our discretion to review Defendant’s insu fficient-evidence clai m for plain error. 2
* * * For the foregoing reasons, we A FFIRM Defendant’s conviction.

2 Even if we were to exercise our di scretion to review De fendant’s claim under the plain-error standard, our re view of the record makes cl ear Defendant is not entitled to relief. Consider ing the overwhelming evidence of gu ilt, we are confident affirming Defendant’s conviction does not result in a “miscarriage of justice.” See Olano , 507 U.S. at 736.